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The Missouri Bar. Fall Committee Meetings November 18, 2011. Family Law Section Immigration Law Committee Juvenile Courts and Laws Committee . Joint CLE . Adoption Practice and Ethical Representation . 1.5 CLE Credit 1 Ethics Credit. General Topics. Overview of In re C.M.B.R.

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the missouri bar

The Missouri Bar

Fall Committee Meetings

November 18, 2011

adoption practice and ethical representation

Adoption PracticeandEthical Representation

1.5 CLE Credit

1 Ethics Credit

general topics
General Topics
  • Overview of In re C.M.B.R.
  • Process and procedure of litigating the chapter 453 adoption with allegations pled under 211.447
  • Special considerations with undocumented parents
  • Special considerations with undocumented children
in re c m b r

In re C.M.B.R

333 S.W.3d 793

Missouri Supreme Court

January 25, 2011

this case addresses issues of
This Case Addresses Issues of:
  • Immigration and Resources
  • Due Process for Parents & Parties
  • Access to Courts for Parents & Parties
  • Timely Permanency for Children
  • Initial / Proper Placement of Children
factual summary
Factual Summary
  • Mother is an illegal immigrant from Guatemala.
  • She gives birth to Child on October 17, 2006, after entering the US (May 15, 2006).
  • She “parents” Child by herself until she is arrested.
  • She is arrested by immigration while working in a poultry plant (May 22, 2007).
  • She only speaks Spanish.
  • After her arrest, she arranges for her brother (Child’s uncle) to provide primary care for her infant Child but…
slide8
Brother moves Child to their Sister (Child’s aunt), who later agrees to let a clergy family provide primary care for Child (time frame is unclear from case & record).
  • Clergy family knows a family who wants to adopt a child (September, 2007).
  • Adoptive Family meets Child (September 24, 2007).
  • Adoptive Family starts visiting with Child (October 3, 2007).
  • Adoptive Family files private action Petition for TPR / Adoption (October 5, 2007).
slide9
Mother pleads guilty in federal court (October 11, 2007); she receives a two year sentence.
  • Mother is served with Adoption/TPR Petition and summons in jail (October 16, 2007).
  • Court schedules transfer of custody hearing; Mother is not listed in notice (October 17, 2007).
  • Transfer of Custody Hearing held & granted (October 18, 2007).
  • Mother writes to counsel for Adoptive Parents, protesting adoption & requesting visits (October 28, 2007).
slide10
Court appoints first counsel for Mother (December 3, 2007) – notice mailed to Mother in jail, but service not accepted.
  • Adoption hearing set (notice filed December 3, 2007).
  • Adoptive parents direct their counsel to find a new attorney who speaks Spanish for Mother and they arrange to pay the fees. New counsel appointed (June 13, 2008).
  • New counsel speaks one time by phone and writes one letter to Mother.
contested adoption tpr trial day october 7 2008
Contested Adoption / TPR Trial Day (October 7, 2008)
  • Three Count Petition:
    • Transfer of Custody & TPR (§ 453.040.7)
    • TPR (§ 211.447.2.b)
    • Grant the Adoption (in Child’s best interests).
  • Mother appeared by her counsel.
  • Counsel cross-examined witnesses, presented a letter from Mother and argued on her behalf.
  • After closing, the court granted the Petition.
  • Written order followed (October 9, 2008).
legal holdings
Legal Holdings
  • Reversed and remanded; the failure to investigate and file required reports, prior to trial, is manifest error. Reviewed as “plain error.”
  • §211.447 & 455: Noinvestigationor social study of proposed adoptive parents was made prior to TPR being granted.
  • §453.070 & 077: No pre & post-placement assessments of Child with Adoptive Parents were presented to court for best interests.
jurisdictional elements
Jurisdictional Elements:
  • Pursuant to §453.010.1,
    • at least one of the following jurisdictional elements exists:
    • The person seeking to adopt resides in the county-§453.010.1(1)
    • The subject child was born in the county- §453.010.1(2)
    • The child is found within the county at the time the petition is filed - §453.010.1(3)
    • Either birth parent resides in the county- §453.010.1(4)
jurisdictional elements1
Jurisdictional Elements:
  • Pursuant to §453.010.3, if the child to be adopted is under a court’s prior and continuing jurisdiction pursuant to Chapter 211, at least one of the following circumstances exists:
    • The Petitioner has petitioned the juvenile division which has jurisdiction over the child for permission to adopt.
    • If the Petitioner is requesting any alternate venue set forth in §453.010.1, the Petitioner has filed a motion with the juvenile division and the receiving court has provided consent before jurisdiction is transferred to a juvenile division in an alternative venue permitted under §453.010.1
other jurisdictional elements
Other Jurisdictional Elements
  • Interstate Compact on the Placement of Children applies (see §210.620 et seq.)
  • Indian Child Welfare Act applies (see 25 U.S.C. §1901 et seq, regarding the applicability of ICWA and tribal notice and service requirements)
what are 211 447 grounds1
What are § 211.447 grounds?
  • Information available to the juvenile officer or the division establishes that the child has been in foster care for at least fifteen of the most recent twenty-two months;
what are 211 447 grounds2
What are § 211.447 grounds?
  • Information available to the juvenile officer or the division establishes that the child has been in foster care for at least fifteen of the most recent twenty-two months;
  • A court of competent jurisdiction has determined the child to be an abandoned infant. For purposes of this subdivision, an "infant" means any child one year of age or under at the time of filing of the petition.
what are 211 447 grounds4
What are § 211.447 grounds?
  • A court of competent jurisdiction has determined that the parent has:
what are 211 447 grounds5
What are § 211.447 grounds?
  • A court of competent jurisdiction has determined that the parent has:
    • Committed murder of another child of the parent;
what are 211 447 grounds6
What are § 211.447 grounds?
  • A court of competent jurisdiction has determined that the parent has:
    • Committed murder of another child of the parent; or
    • Committed voluntary manslaughter of another child of the parent;
what are 211 447 grounds7
What are § 211.447 grounds?
  • A court of competent jurisdiction has determined that the parent has:
    • Committed murder of another child of the parent; or
    • Committed voluntary manslaughter of another child of the parent; or
    • Aided or abetted, attempted, conspired or solicited to commit such a murder or voluntary manslaughter
what are 211 447 grounds8
What are § 211.447 grounds?
  • A court of competent jurisdiction has determined that the parent has:
    • Committed murder of another child of the parent; or
    • Committed voluntary manslaughter of another child of the parent; or
    • Aided or abetted, attempted, conspired or solicited to commit such a murder or voluntary manslaughter ; or
    • Committed a felony assault that resulted in serious bodily injury to the child or to another child of the parent
what are 211 447 grounds9
What are § 211.447 grounds?
  • The child has been abandoned. For purposes of this subdivision a "child" means any child over one year of age at the time of filing of the petition.
what are 211 447 grounds10
What are § 211.447 grounds?
  • The child has been abused or neglected.
    • The Court must make findings on four specific conditions or acts of the parent relating to;
      • Mental Condition
      • Chemical Dependency
      • Severe act of Abuse
      • Repeated or Continuous failure to provide for the child
what are 211 447 grounds11
What are § 211.447 grounds?
  • The child has been under the jurisdiction of the juvenile court for a period of one year, and the court finds that the conditions which led to the assumption of jurisdiction still persist, or conditions of a potentially harmful nature continue to exist, that there is little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the near future, or the continuation of the parent-child relationship greatly diminishes the child's prospects for early integration into a stable and permanent home
  • The Court must consider and make specific findings
what are 211 447 grounds12
What are § 211.447 grounds?
  • The parent has been found guilty or pled guilty to a felony violation of chapter 566 when the child or any child in the family was a victim, or a violation of section 568.020 when the child or any child in the family was a victim. As used in this subdivision, a "child" means any person who was under eighteen years of age at the time of the crime and who resided with such parent or was related within the third degree of consanguinity or affinity to such parent
what are 211 447 grounds13
What are § 211.447 grounds?
  • The child was conceived and born as a result of an act of forcible rape. When the biological father has pled guilty to, or is convicted of, the forcible rape of the birth mother, such a plea or conviction shall be conclusive evidence supporting the termination of the biological father's parental rights
what are 211 447 grounds14
What are § 211.447 grounds?
  • The parent is unfit to be a party to the parent and child relationship because of a consistent pattern of committing a specific abuse, including but not limited to, abuses as defined in section 455.010, child abuse or drug abuse before the child or of specific conditions directly relating to the parent and child relationship either of which are determined by the court to be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental or emotional needs of the child
additional elements of 211 447
Additional Elements of 211.447
  • The juvenile court may terminate the rights of a parent to a child upon a petition filed by the juvenile officer or the division, or in adoption cases, by a prospective parent, if the court finds that the termination is in the best interest of the child and when it appears by clear, cogent and convincing evidence that grounds exist for termination pursuant to subsection 2, 4 or 5 of this section.
additional elements of 211 4471
Additional Elements of 211.447
  • The court shall evaluate and make findings on the following factors, when appropriate and applicable to the case:
    • (1) The emotional ties to the birth parent;
    • (2) The extent to which the parent has maintained regular visitation or other contact with the child;
additional elements of 211 4472
Additional Elements of 211.447
  • The court shall evaluate and make findings on the following factors, when appropriate and applicable to the case:
    • (3) The extent of payment by the parent for the cost of care and maintenance of the child when financially able to do so including the time that the child is in the custody of the division or other child-placing agency;
additional elements of 211 4473
Additional Elements of 211.447
  • The court shall evaluate and make findings on the following factors, when appropriate and applicable to the case:
    • (4) Whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent within an ascertainable period of time;
    • (5) The parent's disinterest in or lack of commitment to the child;
additional elements of 211 4474
Additional Elements of 211.447
  • The court shall evaluate and make findings on the following factors, when appropriate and applicable to the case:
    • (6) The conviction of the parent of a felony offense that the court finds is of such a nature that the child will be deprived of a stable home for a period of years; provided, however, that incarceration in and of itself shall not be grounds for termination of parental rights;
additional elements of 211 4475
Additional Elements of 211.447
  • The court shall evaluate and make findings on the following factors, when appropriate and applicable to the case:
    • (7) Deliberate acts of the parent or acts of another of which the parent knew or should have known that subjects the child to a substantial risk of physical or mental harm.
chapter 453 adoption
Chapter 453 Adoption
  • FOR ADOPTION OF A CHILD UNDER AGE OF 18 YEARS:
    • Consent of adoptee
      • If over 14 years (§453.030.2)
    • The child’s mother
    • The child’s current adoptive parents
    • Other legally recognized mother or father
chapter 453 adoption1
Chapter 453 Adoption
  • FOR ADOPTION OF A CHILD UNDER AGE OF 18 YEARS:
  • Only the man who:
    • §453.030.3(2)(a) -- is presumed to be the father pursuant to subdivision (1), (2) or (3) of §210.822, or
    • §453.030.3(2)(b) -- has filed an action to establish his paternity in a court of competent jurisdiction no later than fifteen days after the birth of the child and has served a copy of the petition on the mother in accordance with §506.100, or
    • §453.030.3(2)(c) -- has filed with the putative father registry pursuant to §192.016, a notice of intent to claim paternity or an acknowledgment of paternity either prior to or within fifteen days after the child’s birth, and has filed an action to establish his paternity in a court of competent jurisdiction no later than fifteen days after the birth of the child
consent not required from
Consent not required from:
  • §453.040(1) - a parent whose rights with reference to the child have been terminated pursuant to law;
  • §453.040(2) -- a parent who has legally consented to a further adoption of the child;
  • §453.040(3) -- a parent whose identity is unknown and cannot be ascertained at the time of the filing of the petition;
consent not required from1
Consent not required from:
  • §453.040(4) -- a man who has not been established to be the father and who is not presumed by law to be the father, and who after the conception of the child, executes a verified statement denying paternity and disclaiming any interest in the child and acknowledging that this statement is irrevocable when executed and follows the consent as set forth in §453.030;
consent not required from2
Consent not required from:
  • §453.040(5) -- a parent or other person who has not executed a consent and who, after proper service of process, fails to file an answer or make an appearance in a proceeding for adoption or for termination of parental rights at the time such cause is heard
consent not required from3
Consent not required from:
  • §453.040(6) -- a parent who has a mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed, and which renders the parent unable to knowingly provide the child the necessary care, custody and control;
consent not required from4
Consent not required from:
  • §453.040(7) -- a parent who has for a period of at least six months for a child one year of age or older, or at least sixty days for a child under one year of age, immediately prior to the filing of the petition for adoption, willfully abandoned the child or for a period of at least six months immediately prior to the filing of the petition for adoption, willfully, substantially and continuously neglected to provide him with necessary care and protection;
consent not required from5
Consent not required from:
  • §453.040(8) -- a parent whose rights to the child may be terminated for any of the grounds set forth in §211.447, and whose rights have been terminated after hearing and proof of such grounds as required by §§211.442-211.487.
what is a consent
What is a Consent?
  • Do the forms comply with §453.030.4-§453.030.9?
  • Children’s Division Form CD 48 OR CD49 utilized
    • Forms may be found at: http://www.dss.mo.gov/cd/info/forms/
why are assessments needed
Why Are Assessments Needed?
  • §453.070.1 (pre-placement) and §453.077.1 (post – placement) are required prior to adoption decrees being granted.
  • The court was provided only with a report as to whether the adoptive parents were suitable as “foster parents” (they were not suitable). No report informed the court about “Best Interests” Factors, such as:
  • The child’s suitability for adoption, or
  • Adoptive family’s fitness to be adoptive parents, or
  • The child’s post-placement adjustment with adoptive family, or
  • The adoptive family’s post-placement adjustment to Child.
chapter 453 required documents
Chapter 453 Required Documents
  • Assessment of adoptive parents pursuant to §453.070 to be completed by ____________(person/agency), and to be submitted to the court prior to transfer of custody pursuant §453.110.6
chapter 453 required documents1
Chapter 453 Required Documents
  • Post – Placements Assessments pursuant to §453.077 to be completed by _____________ (person/agency) and submitted to the court
chapter 453 required documents2
Chapter 453 Required Documents
  • The person placing the child for adoption shall provide a written report regarding the child pursuant to §453.026 before the prospective adoptive parent accepts physical custody of the child (Subject to application of §453.110.5) to:
    • The Court
    • The Guardian ad Litem
    • The prospective adoptive parent
additional required documents when 211 447 grounds are pled
Additional Required Documents when 211.447 grounds are pled
  • investigation and social study pursuant to §211.455(3) to be completed by _____________ (agency/person)
    • The following parties shall have access to the investigation and social study at least 15 days prior to any dispositional hearing, i.e., the trial:
    • Parties
    • Attorneys
    • GAL
    • Volunteer advocates
additional procedural steps when 211 447 grounds are pled
Additional Procedural Steps when 211.447 grounds are pled
  • Has notice been provided to the Juvenile Officer and/or the Children’s Division that allegations under §211.447 have been pled?
    • Joinder of Necessary Parties
      • Juvenile Officer
      • Children’s Division
  • Meeting with the juvenile officer to determine whether all proper parties have been served (within 30 days of filing the petition) - §211.455.1
service of process requirements
Service of Process Requirements:
  • Service of Process Requirements:
    • Any person, agency, organization or institution whose consent to the adoption is required by law, unless consent is filed in court; §453.060.1(1)
service of process requirements1
Service of Process Requirements:
  • Service of Process Requirements:
    • Any person whose consent to the adoption, according to the allegation of the petition for adoption, is not required for the reasons set forth in subdivision (6) or (7) of §453.040; §453.060.1(2);
service of process requirements2
Service of Process Requirements:
  • Service of Process Requirements:
    • Any person, agency, organization or institution, within or without the state, having custody of the child sought to be adopted under a decree of a court of competent jurisdiction even though its consent to the adoption is not required by law; §453.060.1(3);
service of process requirements3
Service of Process Requirements:
  • Service of Process Requirements:
    • Any legally appointed guardian of the child; §453.060.1(4);
    • Any person adjudicated by a court of this state or another state, a territory of the U.S. or another country to be the father of the child §453.060.1(5);
service of process requirements4
Service of Process Requirements:
  • Service of Process Requirements:
    • Any person who has timely filed a notice of intent to claim paternity of the child pursuant to §192.016; and
    • Any person who has timely filed an acknowledgment of paternity pursuant to §193.087
service of process requirements5
Service of Process Requirements:
  • In a Chapter 453 Adoption with allegations pled under §211.447 – in addition to persons required to be served under Chapter 453 pursuant to §211.453.2 – service of process is required on:
service of process requirements with 211 447 grounds
Service of Process Requirements with 211.447 Grounds :
  • The child’s parent(s) (as defined in §211.442(3)) - §211.453.2(1);
    • The biological parent(s) of a child
    • The husband of the natural mother at the time the child was conceived
    • The child’s parent(s) by adoption
    • The child’s mother
    • The putative father of a child shall have no legal relationship unless he, prior to the entry of a decree under §211.442 to §211.487, has acknowledged the child as his own by affirmatively asserting his paternity.
service of process requirements with 211 447 grounds1
Service of Process Requirements with 211.447 Grounds :
  • The putative father who has acknowledged the child as his own by affirmatively asserting his paternity, unless the parent has filed a consent to the termination of parents rights in court; §211.453.2(1);
service of process requirements with 211 447 grounds2
Service of Process Requirements with 211.447 Grounds :
  • Guardian of person of the child; §211.453.2(2);
  • A person, Agency or organization having custody of the child; §211.453.2(3);
service of process requirements with 211 447 grounds3
Service of Process Requirements with 211.447 Grounds :
  • A foster parent, relative or other person with whom the child has been placed; §211.453.2(4); and
  • Any other person whose presences the court deems necessary; §211.453.2(5)
service of process requirements with 211 447 grounds4
Service of Process Requirements with 211.447 Grounds :
  • If a parent’s identity is unknown and cannot be ascertained or cannot be located, no service is required; §211.453.3
  • Service waived or Entry of Appearance filed by a person required to received summons; §211.453.4
service of process requirements with 211 447 grounds5
Service of Process Requirements with 211.447 Grounds :
  • Service by publication requested if service of process cannot be made in the manner prescribed in §506.150; such service shall be made by mail or publication as provided in section; §506.160
larger issues due process notice of proceedings
Larger Issues: Due Process – Notice of Proceedings:
  • What are court’s obligations to provide notice to incarcerated parents?
  • To parents incarcerated out of state?
  • To illegal immigrants?
  • To parents who do not speak English?
  • To parents who are educationally limited?
  • To parents who have cultural limitations?
larger issues due process parent s opportunity to participate
Larger Issues: Due Process – Parent’s Opportunity to Participate
  • What are a court’s obligations to ensure that a parent can be present in court, or
  • That a parent can understand what is being said and done in court?
  • That a parent can meaningfully participate in court proceedings?
  • How to balance these against a child’s need for permanency?
right to counsel
Right to Counsel
  • §453.030.12
  • A birth parent, including a birth parent less than eighteen years of age, shall have the right to legal representation and payment of any reasonable legal fees incurred throughout the adoption process.
right to counsel1
Right to Counsel
  • The Court may appoint counsel to represent the birth parent pursuant to §453.030.12 if:
    • The birth parent requests representation,
    • The court finds that hiring an attorney to represent the birth parent would cause a financial hardship for the birth parent, and
    • The birth parent is not already represented by counsel.
right to counsel2
Right to Counsel
  • Payment of attorney fees for the birth parent: Except where the court determines that the adoptive parents are unable to pay reasonable attorney fees and appoints pro bono counsel for the birth parent, the court shall order the costs of the attorney fees incurred pursuant to §453.040(5)453.030.12 to be paid by the prospective adoptive parents or the child-placing agency.
additional rights to counsel1
Additional Rights to Counsel
  • §211.211
  • ) §211.211.1-A party is entitled to be represented by counsel in all proceedings.
  • §211.221.4-When a child’s custodian appears before the court without counsel, the court shall appoint counsel for the custodian if it finds:
  • The custodian is indigent, §211.221.4(1);
  • Custodian desires the appointment of counsel, §211.221.4(2); and
  • A full and fair hearing requires the appointment of counsel for the custodian §211.221.4(3
additional rights to counsel2
Additional Rights to Counsel
  • §211.462
  • Notification to parent, or guardian of the person of the child, of the right to have counsel
  • The court shall appoint counsel if the child’s parent or guardian of the person of the child:
    • requests counsel, and
    • is financially unable to employ counsel
due process right to counsel parent must request
Due Process – Right to Counsel - Parent Must Request:

“The parent… shall be notified of the right to have counsel, and if they request counsel…, counsel shall be appointed by the court.” §211.462.2.

“12. A birth parent… shall have the rightto legal representation and payment of any reasonable legal fees incurred…In addition, the court may appoint counsel… if: (1). A birth parent requests representation;” § 453.030.12.

due process right to counsel parent must request1
Due Process – Right to Counsel - Parent Must Request:

Mother never asked for counsel. Was this due to:

  • Her lack of interest in her child, or
  • Her incarceration status, or
  • Her inability to speak English, or
  • Her lack of access to interpreters, or
  • Her failure to appreciate the seriousness of her situation?
due process right to counsel
Due Process – Right to Counsel

Each concurring opinion wrote strongly for reversal but no remand for new trial (just return Child to Mother directly) – troubled in part by issues of mother’s lack of access to counsel who was:

  • 1. effective, and
  • 2. conflict-free
due process right to counsel1
Due Process – Right to Counsel

Effective counsel:

  • Mother’s counsel did not object to lack of reports.
  • Did not object to hearsay evidence at trial.
  • Did not present evidence on her behalf (which was presented to MO Supreme Court, but was held as “outside the record” because it was not presented at trial).
  • Did not object to lack of service on Mother.
  • Did not file a timely notice of appeal.
due process right to counsel2
Due Process – Right to Counsel

Conflict-Free counsel:

  • Mother’s counsel was located and retained by Adoptive Family through their counsel, who promised to pay his fees.
  • Information outside the trial record: Mother’s counsel received written information, advice and instructions from Adoptive Parents’ Counsel before he met with his client.
due process right to counsel ethical questions
Due Process – Right to Counsel – Ethical Questions:
  • Who pays for parental counsel if adoptive families should not?
  • Can a parent consent or waive the apparent conflict of interest to facilitate the adoption?
  • What should a court do if parents request counsel in a contested §453 adoption, but cannot pay?
due process right to counsel ethical questions1
Due Process – Right to Counsel – Ethical Questions:
  • Continuing Educational Issues for Attorneys
  • Impact on parents rights in adoptions when they are unrepresented in 211.031 matters
  • How does a Petitioner insure birth parents are properly represented without creating a conflict of interest?
special considerations
Special Considerations

Undocumented Parents

special considerations undocumented parents
Special Considerations Undocumented Parents
  • Impact of threat of deportation
  • Impact of incarceration prior to deportation
  • Impact of deportation
  • Use of Alias
  • Native Language Issues
  • Lack of familiarity with Court Systems
special considerations1
Special Considerations

Undocumented Children

special considerations undocumented children
Special Considerations Undocumented Children
  • Impact of adoption on US citizenship
  • Notice requirements to Child’s country of origin
  • Understanding and documentation of parentage of undocumented children